CLAIM STRUCK OUT !!!! Need help with a court claim please

[FlamingParrot]

Re: Need help with a court claim please

Why do you disagree with an embarrassed defence??

I'm going to quote below what PT2537 has written elsewhere on the subject of embarrassed defences and holding defences:

Ok so you have decided to defend the claim. Firstly,lets look at holding defences as they are some times called. The Whitebook has a very helpful piece on holding Defences. It states

15.5.3
Holding defence

A defendant cannot legitimately obtain more time for preparing their defence by filing the so-called “holding defence” such as “I deny this debt: full defence to follow”. Such a defence does not comply with Pt 16 (contents of defence). A defencewhich consists of a bare denial
may be struck out under r.3.4 (see Practice Direction supplementing r.3.4 , para.1.6, see above para.3PD.1). Indeed on the filing of such a defence a court officer may refer it to a judge and the court may strike it out on its own initiative (see rr.3.2 and 3.3 ).

So if you file a holding defence instead of pleading your defence properly then you will be putting yourself at risk of an application from the Claimant to strike out your Defence or you may find the Court makes an order of its own motion and strikes you out.

It is important that if you can prepare a defence then you do so. It is also equally important in my view that you use the rules to secure the information that is necessary for you to be able to prepare a defence to the Claim.

Now just to qualify a point, if the claim is for money relating to for example a debt that you never had ie they got the wrong person, then you would put forward a simple bare denial as the debt isnt yours, however, if in 1993 you took out an MBNA card and you know it was assigned to 3 different companys over the time and now the Claimant is suing you for that debt, it is foolish in my view to say i dont know about this debt as you would be lying, if you want to however challenge the assignment say then you can say you admit entering into an agreement with MBNA or Barclays but you deny that it has been lawfully assigned to the current claimant, that is of course if you do not have proof of the assignment to the current claimant and genuinely havent been served with the correct papers etc. The single most important thing NOT TO DO is LIE, you must be honest and truthful.

The biggest problem that litigants in person seem to face is that they request a copy of say the agreement mentioned in the Claim form, and the Default notice and the Claimant fails to provide copies within the 7 days which rule 31.15 provides. In these circumstances it seems normal for people to file a "embarrassed Defence" which basically argues the Defendant is embarrassed at pleading because no documents have been provided and for leave to amend the defence later.

There is the option for the Defendant where the Claimant is in-breach of the provisions of CPR rule 31.14 & 31.15 to make an application on an N244 form. Now then, you should exhaust all options before launching an application, it should be last resort not first. Let the creditor have the 7 days he is allowed. On day 8 write to him pointing out the time is slipping and that you require disclosure, ask for an estimate of when the documents will be provided. Dont be frightened to give the creditor a time frame. Say "I require the agreement by 4pm on xxxxxx 2012 or i will have no choice but to make an application to the Court" it will assist if the application is necessary.

Do not allow the time for filing your defence to expire. If you have asked for an extension using CPR Rule 15.5 and that is about to expire, then an application to extend the time frame is important otherwise you will face default judgment and may be faced with a bar on your ability to file a defence.

[FlamingParrot]

Re: Need help with a court claim please

I am nt sure what the service date is on the summons it has an issue date of the 29th October.

You are allowed 5 days for service.

[mysticphoenix666]

Re: Need help with a court claim please

thank you flaming parrot,

They have already had 17 days to comply with either the CCA or CPR, which is why i phoned today. i posted above what they said which apparently isn't good enough as they haven't stated a date only that i can have 14 days after i receive the doc's in which to state my defence. i am feeling a bit confused now as to what to do next.

should i phone them again and get them to actually state a date for my extension and also give them a date to have the doc's to me as they clearly have not got them?
or do i just apply to the court for the n244?

[mystery1]

Re: Need help with a court claim please

What was the service date on your summons??


Can you liberate a bit here M1??
Why do you disagree with an embarrassed defence?? Because you may become liable for costs of an amendment and it's not really a defence to the claim more a complaint about the other side.

I have been away from all this for a year so apologies in advance as I could be missing something

My line of thought is
If the claimant can't/won't/haven't supplied docs or have them to hand BEFORE they submit a claim then IMHO they are trying to abuse the courts system by trying to get a CCJ by default Agree

So if a defendant hasn't received the docs when they have requested the from the claimant, and the claimant is dragging their heels in supplying them, then as I see it defendant has little choice other than submit an embarrassed defence to the court as they can't fully defend themselves without the relevant documentation They should apply to the court. Once an application has been lodged the court should not entertain a default judgement application as the defendant is clearly participating in the case. New dates will be decided by the court once the application is heard.

Also by submitting an unless order to the court with the embarrassed defence, IMHO it shows the judge what the claimant is doing by submitting a claim when they haven't got all the relevant docs to hand BEFORE they submitted a claim It also shows the defendant did not comply with pre action protocols which most of the time is true. Doesn't really help much.

Also it makes the claimant play by the proper rules again, and stops them playing by their own rules that they like to make up as they go along. ie only giving 14 days instead of 28 as the CPR allows, its NOT up to the claimant to set the timescales its up to the court and the CPR's IMO

BUT

Like I said above if I have or am missing something with having a year out, then I sincerely apologise, and I would like to know what that is

I don't see this as new just different to how some thought. Can you show me an embarrassed defence working ? (not a stayed claim)

M1

[mystery1]

Re: Need help with a court claim please

thank you flaming parrot,


should i phone them again and get them to actually state a date for my extension and also give them a date to have the doc's to me as they clearly have not got them?
or do i just apply to the court for the n244?

Phone them and get a date.

An application is a last resort so you need to be seen to be reasonable. Give them a new short deadline and if they fail invite them to agree to the order, then and only then, hit their ass with the application. I wouldn't leave yourself less than 2 weeks f your time left and i'd be looking to apply with 3 weeks left personally.

M1

[mysticphoenix666]

Re: Need help with a court claim please

okay so i will ring them back tomorrow and tell them the email they have sent is no good and they have to state in it that my extension is until the 19th december which is 28 days from today.

So if i tell tell them that they have 5 working days (gives them til next friday) to comply with my requests for the documents, is this reasonable?

so do i then phone them back on friday after my post has arrived (if the doc's haven't) and invite them to agree to an unless order stating that they have a final 5 days to comply with my request and if they refuse this then request the n244 through the court?

sorry for re-asking but i just want to make sure i have it right before i go ahead and do it.

[Gorang]

Re: Need help with a court claim please

M1 PM sent to you

[mystery1]

Re: Need help with a court claim please

okay so i will ring them back tomorrow and tell them the email they have sent is no good and they have to state in it that my extension is until the 19th december which is 28 days from today.

So if i tell tell them that they have 5 working days (gives them til next friday) to comply with my requests for the documents, is this reasonable?

so do i then phone them back on friday after my post has arrived (if the doc's haven't) and invite them to agree to an unless order stating that they have a final 5 days to comply with my request and if they refuse this then request the n244 through the court?

sorry for re-asking but i just want to make sure i have it right before i go ahead and do it.

It's not 28 days from now, it's 28 days from the date that stands for your defence filing currently so 33 days from the date of the claim form plus 28 days for the extension.

After getting the extension i'd give them another 3/4 days (informing them of such) then phone again. Then if no firm update (i.e. they're in the post etc) invite them one last time to consent to an unless order. No deal then go for it. That would be around 10/11 days time.

As always confirm all calls with a follow up email as you need the evidence of your reasonable behaviour for your application to show you were given no choice but to ask the court to get them to comply with their CPR duties so that your could comply with yours.

M1

[mysticphoenix666]

Re: Need help with a court claim please

thanks for your reply m1.

so i have phoned them again today and basically got no where, they refused to confirm a specific date for an extension stating that they couldn't specify a date due to not knowing when they were going to receive the doc's from the original lender as it can take 6-8 weeks for this process.

i informed them that they have already had sufficient time to comply with the original CCA and CPR requests and have failed to do so to which they again stated that until they receive them they cannot send them. I asked if they were holding out on posting the doc's and hoping for a judgement by default as they are hindering me to place my defence and they stated that they will not take the litigation any further until they have provided me with the doc's. Also they said the only options they could offer were an open ended extension which i said would be no good as i need a specific date to forward to the court.

I advised them that they have until Friday next week to provide me with the doc's and then i would be phoning back to request their consent to an unless order which they said they would not be able to consent to.

They also said that my other option would be to give my defence and mention that i have not seen the doc's. I asked for all of this to be confirmed in writing and email once again and below is their email.

I am now at a total loss as i can't file for an extension as they won't give me a date.


Further to our telephone conversation today.

MKDP LLP are not the original lender In this matter so we have requested the documents that you have asked for but this may take 6-8 weeks. As this is likely to be beyond the 28 day extension referred to in CPR 15.5 we consent to you filing your defence 14 days after we have sent you the said documents pursuant to CPR 2.11.

In the alternative please feel free to file your defence stating that you have not received the documents you requested and we will disclose them to you as soon as we receive them from the Original Lender and as directed by the Court.

Yours sincerely
Nicola
Keynes Collections
Email;- legal @compellogroup.co.uk
Tel;- 0800 019 2816
Fleming House
Seebeck Place
Knowlhill
Milton Keynes
MK5 8FR

[mystery1]

Re: Need help with a court claim please

Phone back and ask for the person whose name is on the claim form.

"The claimant claims the sum of £9,311.63 being monies due from the Defendant to XXXX Bank Plc under a loan agreement regulated by the CC Act 1974 which was assigned to the claimant on 8/12/2011. Notice of assignment has been provided to the defendant. The defendants loan account number was xxxxxx. The defendant has failed to make payments in accordance with the terms of the loan agreement. A default Notice has been served pursuant to the CC Act 1974 by xxxx Bank Plc. "

Ask if that person had sight of the documents before submitting the particulars of claim. When they say no ask them how they could sign the statement of truth without sight of them ! It would appear on the face of it to be contempt of court but you'll settle for your extension obviously.

This is a rank rotten practice that needs stopped.

M1

[mysticphoenix666]

Re: Need help with a court claim please

i don't even know who it is that has signed the claim form i just keep getting the same person when i phone who is apparently my account manager within the legal dept.

[mystery1]

Re: Need help with a court claim please

You have a copy of the claim form don't you ?

Bottom left and it's probably typed as it's online.

M1

[mysticphoenix666]

Re: Need help with a court claim please

I do have the form but it didnt say who the name belonged to.

ok so i have just phoned back to be told i cant speak to the CEO (the person who signed the form) as they are not there and probably wouldn't be available to speak to me if they were.

I have just been told that they don't have to see the documents to file a claim with the court, and that there wasn't much this person could do as the only person who could resolve the issue regarding the extension not being specified would be the dept manager who has gone home and is not available now until monday, she would only give me his first name and an extension number to ask for as it is apparently confidential.

I requested that they send me an email confirming this conversation but she declined. They said they didn't have to send me anything in writing regarding the 6-8 weeks that it would take for them to receive the doc's from original creditor when they received my CPR request as the courts know how long it takes to receive these and also that they would have ample time to receive these doc's and send them to me before the court case was heard.

I mentioned again that i would allow them until friday to comply with my request and then i would request n244 from the court. I also asked if they would be so kind as to get this person to phone me as i will be requesting all my costs along with the n244 including all the phone calls i have made from my mobile to a premium rate number and they said they would state that in the notes but they couldn't guarantee when he would be able to phone me.

[mystery1]

Re: Need help with a court claim please

What is written there then ?

M1

[mysticphoenix666]

Re: Need help with a court claim please

it states a persons name and underneath where it states claimant/solicitor it has crosses through solicitors. and the person i just spoke to when i asked for the person by name said it was the CEO